Dmitry Bam, Constitutional Law Professor, University of Maine School of Law

Posted by Kyle Bailey2413sc on February 12, 2016

"After reviewing the proposed legislation, I am convinced that the legislation is constitutional."

"You have asked me analyze whether the proposed Ranked Choice Voting (RCV) legislation violates the plurality provisions of Maine’s Constitution. After reviewing the proposed legislation, I am convinced that the legislation is constitutional.

I. The plurality provisions in Maine’s Constitution do not address the method by which votes are counted.

When assessing the constitutionality of legislation touching on election administration, it is important to distinguish between two independent questions. The first question deals with the counting of the ballots—how the ballots will be designed, collected, and tabulated to reach the final vote count. The second question deals with what happens once the votes have been fully tabulated. Maine’s Constitution has various provisions addressing both of those questions. However, the numerous references to the word “plurality” that have been invoked to question the constitutionality of RCV address only the latter question. In essence, the plurality provisions require that, once the votes are tabulated, the person with the most votes be declared the winner, even if that person has not received more than 50% of the total vote. But these provisions cannot be interpreted to apply to the method of counting the votes.

In interpreting constitutions, courts rely on a number of interpretive techniques.[1] Foremost among these are (1) text, (2) history, (3) structure, and (4) precedent. In addition, some courts also consider (5) consequences and policy values, although reliance on these is often controversial. Here, each of these interpretive methodologies leads to the conclusion that the plurality provisions in Maine’s Constitution are not germane to the proposed RCV legislation.

(1) The constitutional text is clear

Like most courts, I start with the text.[2] Maine’s Constitution has a number of provisions referencing who must be declared the winner after all the votes have been tabulated. Art. III, Section 5, for example, after a lengthy description of the election procedures for the House of Representatives, spells out what happens when the vote is over and the ballots have been counted: “The Governor shall . . . issue a summons to such persons as shall appear to have been elected by a plurality of all votes returned, to attend and take their seats.” Art. IV, §§ 4 and 5 imposes a similar requirement for Senate elections.

Article V, Section 3 is equally clear. Under this Section, the Secretary of State, along with the Maine Legislature, must first “determine[] the number of votes duly cast for the office of Governor.” Then, and only then, “in case of a choice by plurality of all of the votes returned they shall declare and publish the same.” The Plurality Clause thus refers the Legislature’s duty to declare a winner of the election based on the returned results after they have been duly cast and calculated. The Clause says nothing about when the vote counting must stop, what happens before those results are returned, or how the Secretary of State should go about “determin[ing] the number of votes duly cast for the office of Governor.”

The word “plurality” itself denotes a numerical meaning, serving as shorthand for “the candidate with the most votes.” If read to exclude the idea of “majority,” then a candidate elected by the majority, or even one elected unanimously, would not eligible for office since he will not have received a “plurality” of the vote. Just as obviously, the reference to the “plurality of votes” says nothing about the method by which such a plurality is reached. Every dictionary defining the term “plurality” makes references to numbers or numerical concepts; none suggest that the word carries a special loaded meaning describing a particular voting or tabulation procedure.[3]

When the Constitution is silent on an issue, like the method of counting the votes, courts defer to the political process, or the people themselves, to fill those gaps. If the RCV proposal is adopted, it will require the Secretary of State to count the votes by assigning each ballot to “advancing” (not yet eliminated) candidate ranked highest on that ballot, eliminating the candidate with the fewest assigned ballots, and then repeating those two steps until exactly two candidates remain. This procedure has nothing whatsoever to do with the Legislature’s obligations once the votes have been counted.

(2) History supports this understanding of the Plurality Clauses

When the text is ambiguous, courts often look to history to guide their analysis. While I believe the text unambiguously permits RCV, or any other method of vote tabulation that satisfies separate provisions of the state and federal constitutions, history further confirms that the purpose of the Plurality Clauses of the Maine Constitution is to limit the government’s authority to disregard the final vote count when no candidate received a majority of the vote. There is absolutely no indication that the purpose of the provision was to impose a strict limit the actual tabulation method.

The history of the plurality provision in Article V is particularly clear. Before the provision was added, the Legislature hand-picked the Governor if no candidates received a majority of the vote. After an 1879 gubernatorial election yielded no majority, and following an attempt by a sitting Governor to manipulate the Legislative selection process, the people amended the Constitution to clarify that the Legislature must select the person who received the most votes. The revised language is undoubtedly designed to limit the discretion of our elected officials to disregard the final results of an election. But there is nothing in the history of this amendment suggesting that the people also wanted to bind themselves in their ability to develop new election processes. The ratification history is completely silent in that regard.

(3) The structure of the Constitution is consistent with leaving fundamental electoral decisions to the people

Not only are the text and history clear, but they are also consistent with the general structure of the Constitution. One key constitutional purpose is to limit the power of elected officials to engage in self-dealing. The correct reading of the Plurality Clause does so, requiring our elected officials to follow the will of the people. The alternative reading, which loads into the word “plurality” a novel democratic theory and a single correct methodology of electing representatives, ties the hands of the people and removes any possible innovations from consideration. It cabins Mainers to only one type of election: the first-past-the-post elections we have become so familiar with.

In the context of electoral reform, deference to the people is particularly appropriate. Choosing the “best” electoral system is inherently a political choice. And while many states and nations have adopted a first-past-the-post approach, there are many others that have not. Therefore, unless the Constitution clearly forbids it, the people should be free to experiment with alternative methods of vote counting.

Imagine a gubernatorial election where 20 candidates are running for office, with one extreme candidate receiving 6.00% of the vote while the other 19 moderate candidates received between 0 and 5.99%. Anticipating such an election, the people should be free to decide (as long as they do so in advance of the election and consistent with other constitutional principles) whether an election method that helps to resolve such split votes, like the RCV procedure, would lead to a more representative Governor. Neither approach is 'correct.' But the decision as to whether to adopt the RCV approach, or something similar, should be left to the people.

When we discuss the mechanics by which votes are counted, we are asking fundamental questions about rules by which we determine winners and losers of elections. The underlying question—what is the object of the electoral game—is at the heart of this controversy. It is not an easy question, and certainly not one capable of judicial resolution. Because there is no objective standard or test for when voting must stop and ballots must be calculated, the Court’s role should be limited. And the typical presumption that a statute is constitutional should apply with particular force here.

(4) There is little binding precedent

There are no Maine cases deciding whether the plurality provisions in the Constitution constrain the vote tabulation procedures. But courts considering the constitutionality of RCV and other similar proposals have uniformly upheld this tabulation methodology. For example, the Massachusetts Supreme Court upheld a similar procedure used in the city of Cambridge. The Court explained that “elections under [RCV] are in accordance with the principle of plurality voting … [C]andidates receiving the largest number of effective votes counted in accordance with the plan are elected, as would be true in ordinary plurality voting.” Moore v. Election Comm’rs of Cambridge, 35 N.E.2d 222, 238 (Mass. 1941). Other courts have also upheld similar procedures against equal protection challenges.[4]

(5) There are policy reasons to support RCV

As a Constitutional Law scholar, I hesitate to comment on whether RCV is good or bad as a matter of policy, and this factor should certainly be least relevant to the Court’s analysis, if relevant at all. But a number of election-law scholars have pointed out potential benefits of RCV: it reduces the spoiler-effect commonly seen in plurality systems; it gives voters more confidence to express a preference for minor parties; it gives every voter a greater opportunity to affect the outcome of the vote; it arguably leads to elected officials who are more representative of the people. Again, it would not be appropriate for the Court to decide whether RCV is good or bad. But the fact that the choice of voting system has a number of at least theoretical benefits suggests that this is an issue best left to the electorate.

II. Other provisions in the state and federal constitutions constrain the tabulation of ballots.

While the Plurality Clauses focus on what our elected officials must do once all the votes are tabulated, the issue of how to design the ballots and tabulate the votes—the very issue addressed by RCV—is also subject to a number of constitutional constraints. It must be consistent with equal protection and due process principles. For example, if the state decided to only count the first 100,000 ballots cast, and then awarded victory to the person who received a plurality of those votes, this would be unconstitutional, even though the person who received a plurality of the counted vote “won.” Maine’s Constitution, like the Federal Constitution, requires that every vote be counted equally, that the ballots must not be too confusing, and that the standards used to calculate the ballots must be fair and consistent. It is those constraints, not a strained reading of the word “plurality,” that governs how ballots must be counted to ensure that each voter’s voice has been heard."

Dmitry Bam writes and teaches in the fields of constitutional law, professional responsibility, employment law, and the judiciary. He is recognized as a scholar and commentator on judicial ethics, judicial selection, and constitutional interpretation.

From 2005 to 2009, Professor Bam practiced with the law firms of Morrison & Foerster and Jones Day. His practice focused on employment law, securities law, and appellate litigation. His extensive pro bono work has ranged from ensuring indigent civil litigants the right to counsel in Colorado to litigating cases involving discrimination claims and constitutional issues. From 2009 to 2011, Professor Bam served as a Research Fellow at the Stanford Center on the Legal Profession and taught at Stanford Law School.

Professor Bam graduated summa cum laude from Syracuse University and earned a law degree with distinction from Stanford Law School. He served as Articles Editor of the Stanford Law Review and on the editorial board of the Stanford Technology and Law Review. He clerked with the Honorable Barry G. Silverman of the Ninth Circuit Court of Appeals in Phoenix, Arizona.

[3] For example, the 1880 edition of An American Dictionary of the English Language by Noah Webster defined “plurality” as “a state of being or having a greater number” (G. & C. Merriam 1880) (emphasis added). Similarly, the 1964 edition of The Concise Oxford Dictionary of Current English defined “plurality” as “large number, multitude.” 935 (H.W. Fowler and F.G. Fowler ed., 5th ed. 1964) (emphasis added). See also http://www.merriam-webster.com/dictionary/plurality (defining plurality as “a usually large number of things”).